Decision Date: 12/06/95 Archive Date:
12/06/95
DOCKET NO. 93-25 440 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to vocational rehabilitation training under the
provisions of Chapter 31, Title 38, United States Code.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Anna Bryant, Counsel
INTRODUCTION
The veteran had active military service from March 1981 to
July 1986.
This matter came to the Board of Veterans' Appeals (Board)
on appeal from a May 1991 determination by the Vocational
Rehabilitation and Counseling Officer at the Boston,
Massachusetts Regional Office (RO), which denied the
veteran's claim seeking entitlement to vocational
rehabilitation training pursuant to Chapter 31, Title 38,
United States Code. The notice of disagreement with this
decision was received later in May 1991. A statement of the
case was issued in October 1991. The veteran's substantive
appeal was received in December 1991. A supplemental
statement of the case was issued in July 1993. The case was
received at the Board in November 1993. The veteran is
represented by the Disabled American Veterans, and that
organization submitted additional written argument to the
Board in January 1995.
REMAND
Review of the evidentiary record reflects that the veteran
has established entitlement to service connection for
malignant pancreatic gastronoma, evaluated as 100 percent
disabling; and cholecystectomy with gastritis,
vagotomy/pyloroplasty and duodenal ulcer, evaluated as 40
percent disabling. His nonservice-connected disabilities
include gonococcal urethritis, chronic prostatitis and
exotropia. The veteran has appealed to the Board from a
May 1991 determination by the Department of Veterans Affairs
(VA) counseling officer at the RO that he does not have an
employment handicap and is not, therefore, in need of a
program of vocational rehabilitation training pursuant to
Chapter 31, Title 38, United States Code. The Board notes
that the supplemental statement of the case reflects that
the veteran was thereafter seen for additional counseling in
February and March 1993. However, copies of the counseling
reports were not associated with the record certified to the
Board for appellate review. Additionally in May 1991 the
veteran was not service connected for malignant pancreatic
gastronoma which was service connected in an August 1992
rating action effective August 1991.
The Board further notes that a decision of the United States
Court of Veterans Appeals (Court) rendered after the
transfer of this claim to the Board has mandated certain
changes in the adjudication of Chapter 31 cases. In the
recent case of Davenport v. Brown, 7 Vet.App. 476 (1995),
the Court found that neither the language nor the plain
meaning of 38 U.S.C.A. § 3102 (West 1991) requires that
there be a causal nexus between the veteran's service-
connected disability and his or her employment handicap in
order for the veteran to be entitled to Chapter 31
vocational rehabilitation. The Court struck down the
provisions of 38 C.F.R. § 21.51 (1994), including 38 C.F.R.
§ 21.51(c)(2), (e), (f)(1)(ii) and (f)(2) (1994), that
utilize the "materially contribute" language, and which
require a causal nexus between a veteran's service-connected
disability and the veteran's employment handicap. Thus,
pursuant to Davenport, consideration must be given to all of
a veteran's disabilities, both service-connected and
nonservice-connected, in making a determination as to
whether an employment handicap exists in a given case since
the Court found that the term "employment handicap" is not
limited by statute to impairment due to service-connected
disability. Significantly, all of the veteran's
disabilities, service-connected and nonservice-connected
must be considered when determining whether the veteran has
an employment handicap.
Accordingly, further appellate consideration will be
deferred and the case is REMANDED to the RO for the
following actions:
1. The veteran should be requested to identify all
disabilities which interfere with his ability to work and
provide information regarding any sources of recent medical
treatment received for these disabilities. He should also
be requested to furnish signed authorizations for release of
medical records in connection with each private source he
identifies, so that the RO can request them. Copies of the
medical records from all sources he identifies (not already
in the claims folder) should be requested. All records
obtained should be associated with the claims folder.
2. The RO should also secure copies, if any, of the
veteran's counseling, reportedly, undertaken in February and
March 1993.
3. The veteran's vocational rehabilitation and counseling
records, as well as his claims folder with the additional
evidence received in compliance with this remand, should be
returned to the Vocational Rehabilitation and Counseling
Division of the RO for review of all relevant evidence in
conjunction with the veteran's claim. To this end, any
additional development deemed appropriate should be
undertaken. A specific determination should then be made by
the counseling officer as to whether the veteran is in need
of vocational rehabilitation due to an employment handicap.
The determination should be made in accordance with the
holding in Davenport, supra, that there is no statutory
requirement for a nexus between service-connected disability
and employment handicap. Consideration must thus be given
to all of the veteran's disabilities in making a
determination because the term "employment handicap" is not
limited to impairments caused by service-connected
disabilities.
4. If the above determination is adverse, the RO should
furnish the veteran and his representative with a
supplemental statement of the case in accordance with 38
U.S.C.A. § 7105 (West 1991), which summarizes the pertinent
evidence and sets forth all of the applicable legal criteria
pertinent to this appeal. This document should further
reflect reasons and bases for the decision reached.
When the above development has been completed, the veteran
and his representative should be afforded the opportunity
to respond thereto. Thereafter, the case, including the
veteran's VA claims folder and Chapter 31 vocational
rehabilitation and counseling folders, should then be
returned to the Board for further appellate consideration,
if otherwise in order, following appropriate appellate
procedure.
The purpose of this REMAND is to further develop the record
and accord due process of law. The Board does not intimate
any opinion, either factual or legal, as to the ultimate
disposition warranted in this case. No action is required
of the veteran until he receives further notice.
E. M. KRENZER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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